Commonwealth v. Switzer

• Decision Date: 28 April 1890
• Docket Number: 62
• Citation: 19 A. 681,134 Pa. 383
• Parties: COMMONWEALTH v. WILLIAM SWITZER
• Court: Pennsylvania Supreme Court

19 A. 681

134 Pa. 383

COMMONWEALTH v. WILLIAM SWITZER

No. 62

Supreme Court of Pennsylvania

April 28, 1890

Argued March 3, 1890

APPEAL BY DEFENDANT FROM THE COURT OF QUARTER SESSIONS OF MONTOUR COUNTY.

No. 62 January Term 1890, Sup. Ct.; court below, No. 110 May Term 1888, Q.S.

On May 29, 1888, the grand jury returned as a true bill an indictment charging William Switzer with having unlawfully erected, set up and maintained "a building in, on, upon and across a certain ancient and common highway," in the borough of Washingtonville, known as Third street, to the great damage and public nuisance, etc. The defendant pleaded not guilty.

At the trial on September 16, 1889, the commonwealth, to prove the locus in quo to be a public highway, offered in evidence a map having the following recital: "Draft of the Borough of Washingtonville as originally laid out, Anno Domini 1818 together with such alterations as have legally been made; as also the draft made of the several streets, as established by the town council upon the same, from surveys made in 1872 by H. C. Mills, approved the 3d day of October, 1887," signed by J. B. Seidle, A. C. Corson, John Andy, Council Charles Mowrer, Burgess.

The defendant objected to the admission of map, (1), that the original draft from which this was alleged to be made was not produced, there being no evidence to show why it was not produced; (2), that this draft could not be evidence of the existence of a street prior to the date of the making of the draft itself; (3), that it was incompetent and irrelevant for the purpose for which it was offered.

By the court: Objection overruled, offer admitted; exception.

There was testimony that the premises owned by the defendant abutting upon the street, had been occupied for many years by tenants under him, and that at the time the alleged obstructions were erected he was a boarder with his tenants. There was also testimony on the part of the defendant that the obstructions, if any, were caused by an extension of a part of the dwelling-house and the erection of certain out-buildings, all of which were the acts of the tenants.

At the close of the testimony, the court charged the jury in part as follows:

We would not send you out to-night, were it not for the fact that we will most likely need a jury early in the morning in another case, and with the hope that you will be able to agree we place this case in your hands this evening. . . .

[Here in this case it would appear that in the year 1818 the town or the village of Washingtonville was laid out, and the streets, including Third street or East street, as it was called, were opened to the public travel, but unfinished. There were also parallel streets, as you will notice by the draft, the Weidenhammer and other drafts.] They were also laid out, as has been pointed out to you. [The evidence upon the part of the commonwealth is, that this Third or East street was used by the public, some of the witnesses say, as much as some of the other streets parallel with it, and worked or improved and repaired by the authorities of the village as much as some of the other parallel streets.]

It is scarcely possible in a village like Washingtonville, with a street running in the direction that this did, that it should be used as a thoroughfare by any large number of persons; that they have been seen at any one time to pass and repass upon it, as you observe here on Mill street in the borough of Danville. It would not be reasonable to expect it; it is not to be expected and not necessary; but, if it was used by even a few of those who are located in that community or vicinity, who reside there and who had occasion to use it; if it was necessary for them to use it, and if they did use it, then it was a sufficient use and acceptance by the public. These are questions entirely for you under the evidence, whether it was used at all, and whether it was dedicated by the original owner at the time, or at any time, during its existence as a village or a borough, and was accepted, or if it was used for a period of twenty-one years; we say, in either case that Third street would be a public highway. [If that land was dedicated to the public use as a public street by the owners of the land when the village was laid out, or the town plot made; and if their lands were divided into lots, and the lots run off and sold to the line of this Third street, and it was used by the public to any extent, then it would be a public highway.] . . .

[A deed has been offered in evidence here . . . with recitals, back to former owners for a long period of time, showing that these lots were sold to the line of this street, at least on one side, reciting and mentioning East street. Now, if the owner or owners of these lots sold and conveyed them to individuals, prior to the ownership of William Switzer, he being now the grantee of the former owners is bound by their dedication if they so dedicated and sold it. He would be bound, he would stand in the shoes of his grantors; he could not revoke or withdraw that dedication, any more than they could.] . . .

Now, we say that if from 1818, or if for any period of twenty-one years continuously, the public had a right before that to the public use of this street, adversely or against the interests of the owners, that the occupation of it by these ladies and their buildings will not give them a title to it, if it was dedicated to the public, and was accepted and used by the public for a single day before they built there in 1846 or 1847, or subsequently. They moved there, I believe, in 1846 and put these buildings there subsequently. But, if this street was dedicated to the public a single day previously to that time, and was used by them, the dedication was complete and their user of it for a period of more than twenty-one years will give them no right or rights as against the public. It is all a question of fact for you. . . . [And we direct and say to you that the borough of Washingtonville, or the town or township of Derry, previous to its incorporation in 1870 or 1871, was a village or town laid down by plot or draft,...